July 20, 2020
On July 6, 2020, the Supreme Court of the United States held in Barr v. American Assn. of Political Consultants, Inc. that the 2015 amendment to the Telephone Consumer Protection Act (TCPA) allowing robocalls to be used for collecting government debts violates the First Amendment. However, the Court severed that provision from the rest of the statute, keeping the overall robocall ban intact. The Court ruled 6-3 that the exception was unconstitutional, while holding 7-2 that the offending provision was severable from the rest of the statute.
The TCPA, enacted in 1991, prohibits robocalls to cell phones and home phones. In 2015, the law was amended to allow robocalls that are made to collect debts owed to or guaranteed by the federal government, including robocalls made to collect many student loan and mortgage debts.
Plaintiffs — political organizations wanting to make political robocalls to cell phones — challenged the TCPA under the First Amendment, arguing that the 2015 government debt exception unconstitutionally favored government debt collection speech over political and other speech. They sought an invalidation of the entire robocall restriction.
The Court concluded that Congress had impermissibly favored government debt collection speech over other speech in violation of the First Amendment. But, applying traditional severability principles, the Court determined that the entire TCPA should not be invalidated. Instead, the Court struck the 2015 government-debt exception and severed it from the remainder of the statute. As a result, plaintiffs still may not make robocalls to cell phones — but neither may the government.
The plurality opinion, authored by Justice Kavanaugh, explained that “a law is content-based if a regulation of speech on its face draws distinctions based on the message a speaker conveys,’” and the exception for government calls favors speech made for collecting government debt over other speech.
Justice Sotomayor concurred in the judgment, but wrote that strict scrutiny should not apply to all content-based distinctions. She concluded that intermediate scrutiny should be applied to the government-debt exception, which the exception still fails to satisfy.
Justice Breyer, joined by Justice Ginsburg and Justice Kagan, concurred in the judgment with respect to severability but dissented from the decision striking down the government debt provision. Justice Breyer wrote that courts are “reflexively applying strict scrutiny to all content-based speech distinctions,” which is “divorced from First Amendment values.” He stressed that “it is equally important that courts not use the First Amendment in a way that would threaten the workings of ordinary regulatory programs posing little threat to the free marketplace of ideas….” Justice Breyer opined that an intermediate scrutiny standard should be applied, and since “Congress has minimized any speech-related harm by tying the exception directly to the Government’s interest in preserving the public fisc,” the government-debt exception should survive the constitutional challenge.
Justice Gorsuch, concurring in the judgment in part and dissenting from the severability determination, argued that the entire ban on robocalls to cell phones is a content-based restriction that fails strict scrutiny. Justice Gorsuch was perturbed by the fact that plaintiffs won the constitutional argument, but no remedy for themselves. He concluded that the plaintiffs should be entitled to an injunction allowing them to use robocalls.
The end result is that the TCPA’s robocall restrictions continue in place and are strengthened by the removal of the government debt exemption. The ruling accordingly will not have the significant impact on political advertising during the 2020 election that many had predicted. The decision’s ultimate legal effect may lie in its examination of First Amendment doctrine and its severability analysis. Its immediate consequence, however, will be a boost to consumer privacy that (most of) the Justices, and the American public, will welcome.